Governance









White Paper on Surrogate Decision-Making and Advance Care Planning in Long-Term Care

Table of Contents
  1. Introduction
  2. Competence
  3. Decision-Making Capacity
  4. A framework for assessing decision-making capacity
  5. Surrogate Decision-Making
  6. Advance Directives
  7. Guardianship
  8. An Ethical Framework for Surrogate Decision-Making
  9. Decision-making by mentally incapacitated long-term care facility residents
  10. The hierarchy of medical decision-making for incapacitated nursing home residents
  11. Guidance for guardians and other surrogates about medical decision-making
  12. What surrogates and health care provider should expect from each other
  13. Some Important Clinical Issues
  14. Summary and Conclusions
  15. References

Decision-Making Capacity

While courts alone determine competence, clinicians often assess what is usually termed the patient's decision-making capacity. Decision-making capacity implies the ability to understand the nature and consequences of different options, to make a choice among those options, and to communicate that choice. Decision-making capacity is thus required in order to give informed consent. When applied to medical decisions, this requires that a person understand a diagnostic or therapeutic intervention's significant benefits, risks, and alternatives.

A person unable to make and communicate medical decisions is deemed incapacitated. He or she may also be unable to provide for basic needs, including medical care, nutrition, clothing, shelter, or safety. Incapacity does not necessarily imply incompetence, as court proceedings are not undertaken for all incapacitated people. While competence denotes a legal status and is unambiguous, decision-making capacity, by contrast, can be partial and may have gray areas. Moreover, the standard for decision-making capacity varies with the complexity and consequences of the decision in question. The greater the complexity or the graver the consequences of the decision, the higher the standard, so that the same person may have the capacity to make one type of decision and not another. An individual's decision-making capacity may also fluctuate over time, as a result of transient changes in a person's ability to comprehend or communicate. For example, a person may lose the ability to communicate while under general anesthesia but regain that ability after recovering from anesthesia.

Incompetence does not necessarily mean that an individual lacks the capacity to make decisions. For example, an individual may be declared incompetent in one domain such as in handling financial matters, but may still retain the ability to make medical decisions.

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